Report: International Criminal Court Bill [B 42 - 2001], dated 7 June 2002:
The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the International Criminal Court Bill [B 42 - 2001] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, presents the Implementation of the Rome Statute of the International Criminal Court Bill [B 42B - 2001] (National Assembly - sec 75), and endorses the classification of the Bill as a section 75 Bill.
The Committee wishes to report further, as follows:
1. Territorial jurisdiction of South African courts
(a) Clause 4 of the International Criminal Court Bill deals with the jurisdiction of South African courts in respect of the crimes of genocide, crimes against humanity and war crimes which are created in the proposed legislation. Clause 4(3) more specifically sets out the circumstances in which the South African courts will have jurisdiction to hear cases against persons who are alleged to have committed one of the crimes in question if the crimes are alleged to have been committed outside the territory of the Republic, namely -
* if the perpetrator is a South African citizen;
* if the perpetrator is not a South African citizen but is ordinarily resident in the Republic;
* if the perpetrator is present in the Republic after the commission of the crime; and
* if the perpetrator has committed a crime against a South African citizen or against a person who is ordinarily resident in the Republic.
(b) The approach adopted in the Bill by giving South African courts extended jurisdiction to deal with crimes which were committed outside the territory of the Republic is similar to the Canadian legislation, among others, dealing with the International Criminal Court.
(c) It is understood that Belgium is the only country which, to date, has gone even beyond what South Africa and Canada have done in respect of jurisdiction, namely by giving the Belgian courts universal jurisdiction to deal with prosecutions instituted against persons who are alleged to have committed one of the above crimes. This, in effect, means that the Belgian courts can deal with cases in which the crimes in question have been committed by any person anywhere in the world.
(d) The Committee expressed the view that the possibility of giving the South African courts universal jurisdiction to deal with the prosecutions under discussion, should be explored. It consequently requested the Department of Justice and Constitutional Development to -
(i) undertake the necessary research in this regard, taking all the implications of such an approach into consideration, particularly those of a financial nature and the difficulties which may arise as a result of competing requests from different countries; and
(ii) report back to the Committee within six months after the adoption of this Report by the National Assembly.
2. Enforcement of sentences of imprisonment in South African prisons
(a) Article 103 of the Statute envisages States indicating their willingness to accept sentenced prisoners to serve their terms of imprisonment in their prisons. States which are willing to accept such sentenced prisoners will be placed on a list by the Court. At the time of indicating their willingness to accept sentenced prisoners, States are given the opportunity to spell out conditions pertaining to such acceptance. The Court will thereafter, in individual cases, designate particular States on the list for purposes of referring sentenced prisoners to serve their sentences. In order to give effect to this arrangement in the Statute, Clauses 31 and 32 of the Bill, in brief, provide for the following:
(i) The Cabinet member responsible for correctional services must, in consultation with the Cabinet and with the approval of Parliament, decide, as soon as is practicable, whether South Africa should be placed on the list of States willing to accept sentenced prisoners and determine the conditions pertaining to such acceptance.
(ii) This decision must be submitted to the Court.
(iii) Similar procedures apply in the event of South Africa wishing to revoke or vary such an acceptance.
(iv) Once South Africa has been placed on the above-mentioned list, the Court can designate South Africa as a State to accept a particular prisoner in a particular case for purposes of serving a sentence of imprisonment. This designation is referred, via the Central Authority, to the Cabinet member responsible for correctional services, who is given a discretion whether to accept the designation in question or not.
(v) The Court must be informed as soon as possible whether the designation is accepted or not.
(vi) A warrant of detention issued by the Court in respect of a person referred to South Africa for purposes of serving a sentence of imprisonment is deemed to be a valid warrant for the purposes of section 6 of the Correctional Services Act, 1998.
(b) The Committee requests the Cabinet member responsible for correctional services to initiate an investigation, as soon as possible, into the possibility of placing South Africa on the list of States willing to accept sentenced prisoners for purposes of serving their sentences of imprisonment in South African prisons and, if so accepting, to determine the conditions pertaining to such acceptance, as contemplated in Clauses 31 and 32 of the Bill and, in the process thereof, to consider all possible implications thereof, particularly those of a financial nature.
3. Commencement of Bill
The Rome Statute of the International Criminal Court is scheduled to commence on 1 July 2002. With this in mind, Clause 5(2) of the Bill provides that no prosecution may be instituted against a person accused of having committed a crime if the crime in question is alleged to have been committed before the commencement of the Statute. The Committee requests the Department of Justice and Constitutional Development to make every effort to ensure that the proposed legislation can be put into operation on or before 1 July 2002, also ensuring that the required subordinate legislation is prepared and promulgated timeously.